Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 1 of 9

ATTORNEY FOR APPELLANT

Daniel K. Whitehead

Yorktown, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

David A. Arthur

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kevin Allen Holladay,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

June 27, 2023

Court of Appeals Case No.

22A-MI-2633

Appeal from the Madison Circuit 

Court

The Honorable Scott A. Norrick, 

Judge

Trial Court Cause No.

48C05-2104-MI-159

Opinion by Judge Weissmann

Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 2 of 9

Weissmann, Judge.

[1] Fifteen years ago, the Commonwealth of Kentucky required Kevin Holladay to 

register as a sex offender for 20 years for his conviction of a sex crime against a 

minor. Without registering in Kentucky, Holladay moved to Indiana and 

registered here. Thereafter, he petitioned the court to remove him from 

Indiana’s sex offender registry, arguing that his Kentucky crime does not render 

him a sex offender under the Indiana Code and that requiring him to register is 

both an ex post facto punishment and a violation of the Indiana Constitution’s 

Privileges and Immunities Clause. We affirm the trial court’s denial of 

Holladay’s petition for removal from Indiana’s sex offender registry. 

Facts

[2] In 2008, Holladay was convicted in Kentucky of sexual abuse in the second 

degree. Under the Kentucky Penal Code, “A person is guilty of sexual abuse in 

the second degree when . . . [h]e or she is at least eighteen (18) years old but less 

than twenty-one (21) years old and subjects another person who is less than 

sixteen (16) years old to sexual contact.” KRS § 510.120(1)(a). A defendant 

convicted of this crime is required to register under Kentucky’s Sex Offender 

Registration Act. KRS § 17.500(5)(a)(2) (defining “registrant” as one who has 

committed “[a] criminal offense against a victim who is a minor”); KRS § 

17.500(3)(9) (specifying that a “criminal offense against a victim who is a 

minor” includes “[s]exual abuse, as set forth in KRS 510.120”).
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[3] As Holladay describes his crime, “[t]here was no rape, no criminal deviate 

conduct, child molesting, child exploitation, vicarious sexual gratification, child 

solicitation or child seduction charged.”

1 App. Vol. II, p. 49. Holladay pleaded

guilty and received a one-year executed sentence with five months suspended to 

probation. Although the Kentucky court ordered Holladay to register for 20 

years, he never did so.

[4] Holladay moved to Indiana at some point after his conviction. And once in 

Indiana, Holladay placed his name on the sex offender registry. In April 2022, 

Holladay petitioned an Indiana trial court to have his name removed from the 

Indiana sex offender registry. The trial court denied Holladay’s request. 

Discussion and Decision

[5] Holladay makes three arguments on appeal. First, he argues that his registration 

as a sex offender in Indiana violates the strictures of Indiana Code § 11-8-8-5

because the statute does not specifically delineate his Kentucky offense as a 

crime requiring registration. Second, he contends that his registration 

constitutes an ex-post facto punishment in violation of Article 1, Section 24 of 

the Indiana Constitution. And third, he asserts that his registration infringes the 

Privileges and Immunities Clause of Article 1, Section 23 of the Indiana 

Constitution. These claims present questions of law that we consider de novo. 

1 As Holladay failed to include in the record any documentation of this crime beyond its Kentucky cause 

number—which, given that it yields no results when searched, is presumably incorrect—any further details of 

the crime are unknown. 
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Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). For his constitutional arguments, 

Holladay brings as-applied challenges, meaning “he need only show the statute 

is unconstitutional ‘on the facts of the particular case.’” State v. Zerbe, 50 N.E.3d 

368, 369 (Ind. 2016) (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 n.6 (Ind. 

2016)).

I. Statutory Analysis

[6] To begin, Holladay argues that because his Kentucky crime is unlike any of the 

specifically listed offenses in Indiana Code § 11-8-8-5(a), the Indiana Legislature 

did not intend him to be on the sex offender registry due to his out-of-state

registration. Our reading of the statute, however, convinces us that the out-ofstate registration requirement independently requires his registration, regardless 

of any similarities, or lack thereof, with the crimes specifically listed there. 

[7] We follow a well-trodden path when confronted with questions of statutory 

interpretation. “Our primary goal in interpreting statutes is to determine and 

give effect to the Legislature’s intent.” Adams v. State, 960 N.E.2d 793, 798 (Ind. 

2012). From the start, “[t]he best evidence of that intent is a statute’s text.” Id.

And “when a statute is clear and unambiguous, we must apply the plain and 

ordinary meaning of the language.” Id.

[8] Indiana law requires that any “sex or violent offender” must be placed on the 

sex offender registry. Ind. Code § 11-8-8-7(a)(1). The definition of a “sex or 

violent offender” is provided by Indiana Code Section § 11-8-8-5. As explained

by the Indiana Supreme Court:
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Indiana Code section 11-8-8-5[] defines “sex or violent offender”

in two parts. Subsection (a) lists twenty sex crimes in our Indiana 

Code that, if convicted of any one of them, result in such a 

classification; subsection (b) adds, “the term includes”:

(1) a person who is required to register as a sex or violent 

offender in any jurisdiction . . . .

Tyson v. State, 51 N.E.3d 88, 91 (Ind. 2016). Thus, in our Supreme Court’s own 

words, subsection (b) “adds” another, alternative registration requirement. 

Holladay cites no authority and offers no persuasive argument to the contrary. 

Indeed, his main argument, that reading Indiana Code § 11-8-8-7 “as a whole” 

reveals the legislature’s intent, works against him.

[9] If the legislature had wanted to limit subsection (b) to only those out-of-state 

crimes comparable to the ones listed in subsection (a), it is fully aware of how to 

do so. For example, as recently as 2020, the definition of a “sexually violent 

predator” provided that the out-of-state registration requirement only attached 

so long as the registrant had committed an offense “substantially equivalent to 

any of the offenses” listed in the statute. Ind. Code § 35-38-1-7.5(k) (2020); see 

also Spencer v. State, 153 N.E.3d 289, 295-98 (Ind. Ct. App. 2020) (applying Ind. 

Code § 35-38-1-7.5). This is essentially the language Holladay asks us to insert 

into the statute. But because adding this language would unquestionably alter 

both the effect of the statute and the expressed intent of the legislature, we 

decline to do so. Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d 

371, 376 (Ind. 2017) (“We may not add new words to a statute which are not 

the expressed intent of the legislature.”). 
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[10] Holladay is thus a “sex or violent offender” per the terms of Indiana Code § 11-

8-8-7(b)(1). 

II. Ex Post Facto Clause

[11] Holladay next argues that his registration constitutes an ex-post facto 

punishment under Article 1, Section 24 of the Indiana Constitution.

[12] Article 1, Section 24 provides that “No ex post facto law . . . shall ever be 

passed.” This provision serves to generally prohibit “laws that impose 

punishment for an act that was not punishable at the time it was committed or 

imposes additional punishment to that then prescribed.” Crowley v. State, 188 

N.E.3d 54, 58 (Ind. Ct. App. 2022). “The underlying purpose of the Ex Post 

Facto Clause is to give effect to the fundamental principle that persons have a 

right to a fair warning of that conduct which will give rise to criminal 

penalties.” Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009). 

[13] As Holladay admits, his Kentucky offense and subsequent move to Indiana 

both occurred in 2008. The legislature enacted SORA in 1994 and amended the 

statute to include the out-of-state registration requirement in 2006. State v. Zerbe, 

50 N.E.3d 368, 369 (Ind. 2016). In a pair of cases handed down together, the 

Indiana Supreme Court held that no violation of Indiana’s Ex-Post Facto 

Clause occurred when offenders had committed their offense before the 

enactment of SORA, were required to register in their original states, and had 

moved to Indiana after the out-of-state registration requirement went into effect. 

Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016); Zerbe, 50 N.E.3d at 368. In effect,
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the Court found that “maintaining a registry requirement across state lines does

not amount to a punitive burden.” Tyson, 51 N.E.3d at 90. By extension, 

Holladay is not punitively burdened here.

[14] But undeterred by these cases, Holladay argues that his registration is punitive 

because, unlike the registrants in Tyson and Zerbe, he never registered in his 

original state. To Holladay, this fact transforms his registration requirement 

from the non-punitive act of merely “maintaining” the registration across state 

lines at issue in those cases into an additional, affirmative obligation.

[15] Setting aside that there is no ex-post facto violation because Holladay’s crime in 

Kentucky and move to Indiana occurred after the current version of SORA 

went into effect, we find Holladay’s argument unavailing. He asks us to endorse 

a system in which recently convicted sexual offenders would be in a race to 

move to Indiana before they could be properly registered to avoid any 

registration requirement. This would also imply that a sex offender could duck 

their registration obligation in their original state, move to Indiana, and 

suddenly claim that registering as a sex offender would be a punitive burden. 

Holladay deserves no credit for his failure to register in Kentucky.

[16] Given that Holladay faced no more of a punitive burden than the registrants in 

Tyson and Zerbe, we find no violation of Indiana’s Ex-Post Facto Clause.

III. Privileges and Immunities Clause

[17] Lastly, Holladay contends that his registration violates Indiana’s Privileges and 

Immunities Clause. Article 1, Section 23 of the Indiana Constitution reads:
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“The General Assembly shall not grant to any citizen, or class of citizens, 

privileges or immunities, which, upon the same terms, shall not equally belong 

to all citizens.”

[18] In his complaint, Holladay claimed only that his registration infringed his 

constitutional “right to travel” and cited a case involving the Federal 

Constitution. App. Vol. II, p. 61 (citing Hope v. Comm’r of Ind. Dep’t of Corr., 984 

F.3d 532 (7th Cir. 2021), rev’d 9 F.4th 513 (7th Cir. 2021) (en banc)). The State 

argues that Holladay waived this issue for failure to raise it before the trial 

court. We agree.

[19] To avoid waiver, Indiana courts have long required litigants to first raise the 

issue before the trial court. Here, Holladay neither mentioned Article 1, Section 

23 nor offered legal analysis on the issue to the trial court. Indeed, in issuing its 

order, the trial court did not reference or even hint towards resolving any issue 

under Indiana’s Privileges and Immunities Clause—despite otherwise

addressing and answering Holladay’s other statutory and Ex-Post Facto Clause 

arguments. Hence, Holladay waived any relief based on this claim for failure to 

raise it before the trial court. Plank v. Cmty. Hosp. of Ind., 981 N.E.2d 49, 53 (Ind. 

2013) (recognizing the “general rule . . . that failure to challenge the 

constitutionality of a statute at trial results in waiver of review on appeal”); see 

also Stevens v. State, 691 N.E.2d 412, 429 n.17 (Ind. 1997) (requiring litigants to 

present “separate legal analysis” of Indiana Constitutional issues to avoid 

waiver). 
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[20] Holladay has failed to show reversible error in the trial court’s denial of his 

petition for removal from Indiana’s sex offender registry.

[21] Affirmed.

Bailey, J., and Brown, J., concur.